5 key questions about the legal issues of the contraception mandate

President Barack Obama’s health care law is back in the legal spotlight just days after it went into full effect.

The Obama administration on Friday asked the Supreme Court not to block the Obamacare contraception coverage requirement for a Denver nursing facility, arguing that the home run by Catholic nuns is already protected from the requirement.

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Roundtable: Healthcare year-in-review

Justice Department lawyers said that employees at the Little Sisters for the Poor Home for the Aged might never have received the contraception coverage most health plans are now required to provide under the Affordable Care Act. That’s because the nursing home uses a Christian health insurer that is recognized as a church under U.S. employment law and is already exempt from the contraception rule.

“Applicants have no legal basis to .. complain that it involves them in the process of providing contraceptive coverage,” government lawyers wrote to the court. “This case involves a church plan that is exempt from regulation” under a 1974 labor law that predates the president’s health care law.

On New Year’s Eve, Justice Sonia Sotomayor granted the nursing home, a last-minute, temporary reprieve from the coverage requirement in the health care reform law. She gave the government until 10 a.m. Friday to respond.

The contraceptive coverage issue is already heading to the Supreme Court in two cases brought by for-profit companies. But dozens of religious-affiliated groups, from universities to social welfare organizations, have also petitioned federal courts to eliminate the requirement as well.

In all, more than 90 legal challenges have been filed around the country. A Supreme Court decision against the contraceptive rule, whether in a case brought by a religious-affiliated group or for-profit company, would undercut but not cripple the ACA.

Here are five questions and answers on the latest developments.

What does this particular case involve?

The case brought by the Little Sisters of the Poor Home for the Aged falls into an unexpected loophole in the ACA’s contraception coverage.

Earlier this year, the Obama administration tried through regulations to accommodate religious-affiliated nonprofits that took issue with the requirement that employers cover contraception. It allowed groups like the Little Sisters to tell their insurance company or third-party administrator that they objected on religious grounds. The insurer or administrator would then have to provide contraceptives to the employees at no charge.

The premise was that an insurer or administrator would not have the same objection to providing such products. But the catch here is that the Little Sisters’ administrator — the Christian Brothers Employee Benefits Trust — is also run by a religious order.

The Christian Brothers, who joined the Little Sisters on the lawsuit, qualify as a church under employment law. And under that law, if they don’t want to provide contraception, the federal government has no recourse to force them to do so.

The government is expected to tell the Supreme Court on Friday that if the Brothers have religious objections to the mandate, they can refuse to send contraceptives to the employees with no repercussions — and therefore, the Little Sisters have no reason to bring this lawsuit. That was the government’s argument to the 10th Circuit Court of Appeals in the case.

“No one will ever get contraception coverage in that context, so it’s hard to imagine they have standing, that there is a substantial burden on their religious beliefs or that there is sufficient harm to [block the policy],” said Brigitte Amiri, a senior staff attorney at the American Civil Liberties Union, which has filed briefs in support of the government’s position in similar cases.

The Little Sisters say they object to even notifying their administrator to provide contraceptives, regardless of the fact that the Brothers would not comply on religious grounds.

“What the Little Sisters say is we can’t sign a permission slip to give our employees something that we believe is wrong,” said Daniel Blomberg of the Becket Fund for Religious Liberty, which represents the nuns.

What has the Supreme Court done, and what could it do Friday?

On New Year’s Eve, Sotomayor issued an order to prevent the Little Sisters from facing fines for violating the requirement. Now that the government has responded, Sotomayor could decide to keep her order in place, remove it or take the issue to the other justices. The Supreme Court could then decide to hear the full case in the next few months. Even if this specific case does not come before all the justices immediately, the core issue here could eventually work its way through the legal system and return to the high court through this case or a different case. The issue raised by the Little Sisters could apply to nearly 500 religious-affiliated organizations nationwide.

Isn’t the Supreme Court already set to hear the issue of religious objections to the contraceptive mandate?

Sort of. The justices have accepted two related cases, brought by the national craft chain Hobby Lobby and the Pennsylvania-based Conestoga Wood Specialties. (In one case, a lower court ruled for the government; in the other, for the company.) But both are for-profit businesses that happen to be owned by people with strongly held religious beliefs that forbid them from providing certain contraceptives. The groups granted the temporary reprieve on New Year’s Eve are religious-affiliated institutions and the law applies to them in a different way.

How does the law apply to businesses?

Religious organizations such as churches are completely exempt from providing contraception. For-profit businesses, such as a grocery store or accounting firm, have no exemptions and must provide the coverage or face steep fines.

Religious-affiliated groups that fall somewhere in the middle, such as the Little Sisters or a Catholic college, can use the Obama administration’s regulatory accommodation and work through their insurer or third-party administrator.

The White House said the accommodation puts adequate distance between that entity and the requirement. The administration contends that it protects the group’s religious rights while ensuring that female employees have access to contraceptives no matter where they work. The groups that have filed suit disagree and say their religious beliefs are still in conflict with the requirement. They argue that if they have a religious-based objection to contraception, they should neither have to pay for it nor provide access to it.

Where did this requirement come from and who objects?

The health law requires that employers provide basic essential health benefits, including preventive care, in their employee insurance plans. The Obama administration, acting on recommendations from the Institute of Medicine, said that all FDA-approved forms of contraception should be covered without a co-pay.

Some religious groups, most notably the Catholic Church, object to the use of contraception and say they should be exempt from the requirement. Some object to all forms of contraception, but most of the opposition is directed toward IUDs and the so-called morning after pill, known as Plan B or Ella (which is available over the counter or through a prescription). While the FDA calls those products contraception, many organizations say that they could prevent the implantation of a fertilized embryo, which they consider akin to abortion.

So far, 19 of the 20 cases brought by nonprofit organizations that have been considered by the courts have been granted at least temporary relief from the requirement.